Thursday, April 20, 2017

Internet provider Windstream is among the companies that are gravely concerned about the verdict against fellow ISP Cox, which was held liable for pirating subscribers in 2015.

With more than a million subscribers nationwide, it is one of the larger Internet providers in the United States, and as such it regularly receives takedown notices targeting its subscribers.

Many of these notices come from music rights group BMG and its anti-piracy partner Rightscorp, which accused the ISP of being liable for the actions of its customers.

Windstream wasn’t happy with these accusations and the associated risk, filing a request for declaratory judgment at a New York District Court last year. It asked the court to rule that it’s not liable for the infringing actions of its subscribers under the DMCA’s safe harbor provisions.

For their part, BMG and Rightscorp protested the request and told the court that a lawsuit is premature, as the copyright holder hasn’t even officially filed an infringement complaint. Instead, they accused the ISPs of trying to get broad immunity without going into specifics, such as their repeat infringer policies.

In a motion to dismiss the case music rights group told the court that concrete actions and policies play a crucial role in determining liability, accusing Windstream of trying to escape this responsibility.

This week the court issued its final verdict in the case, which brings bad news for the Internet provider.

The court ruled that there is indeed no actual controversy and that it can’t issue a hypothetical and advisory opinion without concrete facts. As such, the case is dismissed for lack of jurisdiction.

“The amended complaint does not present such a controversy. Instead, Windstream seeks a blanket approval of its business model, without reference to any specific copyright held by BMG or any specific act of direct infringement by any Windstream subscriber,” the court writes.

“Windstream seeks the kind of hypothetical and advisory opinion, isolated from concrete facts, that cannot confer jurisdiction upon this Court,” the order adds (pdf).

The ISP hoped to get clarity on how to respond to the copyright infringement notices BMG sends, but the court says that it can’t decide on this without concrete examples.

This doesn’t mean that Windstream is liable, of course. The ISP may very well be protected by the DMCA’s safe harbor provisions, but this has to be decided on a case-by-case basis.

“Because Windstream seeks declarations untethered from any actual instances of copyright infringement or any mention of a specific copyrighted work, the complaint fails to identify an actual case or controversy and the declaratory judgment claims must be dismissed,” the court writes.

The order is a major disappointment for Windstream, which can still only guess whether it’s doing the right thing or not.

BMG and Rightscorp previously said that the ISP was liable for damages as high as $150,000 per infringed work, and with the current order this threat is still hanging over its head.